HomeMy WebLinkAbout1993-1270.Baldeo.96-06-05
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ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L'ONTARIO
.' GRIEVANCE COMMISSION DE !"'\
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11111 SETTLEMENT REGLEMENT I)t (; sse-
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BOARD DES GRIEFS " .5 (Y
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180 DUNDAS STREET WEST, SUITE 21 DO, TORONTO ON M5G 1 Z8 TELEPHONE/TELEPHONE (416) 326-1388
180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMiLE/TELECOPIE (416) 326-1396
GSB # 1270/93
OPSEU # 93F522
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Baldeo)
Grievor
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The Crown in Right of ontario
(Management Board secretariat)
Employer
BEFORE H Finley Vice-Chairperson
E Seymour Member
D Montrose Member
FOR THE P Lukasiewicz
GRIEVOR Counsel
Gowling, Strathy & Henderson
Barristers & Solicitors
FOR THE A Rae
EMPLOYER Coungel
Filion, Wakely & Thorup
Barristers & Solicitors
HEARING November 7, 1995
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GSB 1270/93
DECISION
The Gnevor, Ms. Leela Baldeo, had filed two gnevanges. The first, dated January II,
1993, (GSB 3739/92) stated,
I grieve that the employer is violating the provisions of Article 12 of the Collective Agreement in
denying me Long term Income Protection (L TIP) Benefits.
It asked
That the employer immediately comply with Article 42 of the Collective agreement including
compensation for all lost monies and benefits (with interest),
Ms. Baldeo was notified by her Employer that, as of May 18, 1993, she was consIdered to have
abandoned her posItion and was therefore released from employment, On June 17, 1993, she
filed a further gnevance (GSB 1270/93) allegmg that she had "been unjustly dIsmIssed" and
askmg for ImmedIate remstatement "wIth full retroactIve pay plus benefits wIth Interest" The
two gnevances came to the Board sImultaneously and Counsel for the partIes agreed that they
would deal with the matter of L TIP Imtlally and would aWaIt the Panel's declSlon on that matter
before proceedmg wIth the alleged dIsmIssaL The Employer made It clear at that tIme, that It
was takmg the posItIOn that the Gnevor had abandoned her posltlOnand that she had been
notIfied of that pursuant to s. 20 of Tlte Public Service Act and had also been warned m advance.
That sectIOn reads as follows
20. A public servant who is absent from duty without official leave for aperiod
of two weeks or such longer period as is prescribed in the regulations may by an
instrument in writing be declared by his deputy minister to have abandoned his
pOSition, and thereupon his position becomes vacant and he ceases to be a public
servant.
Counsel agreed that Ms. Baldeo was a pubhc servant at the tIme that the notIce of abandonment
was sent to her and that the mdlvIdual who SIgned the notIce was properly deSIgnated by the
Deputy MmIster
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ThIs Panel Issued a decIsIon on the first grIevance m March 1995 In that decIsIOn, the
majorIty of the Board ruled that Ms. Leela Baldeo was not totally dIsabled under the meanmg of
ArtIcle 42.2 4 of the CollectIve Agreement. F ollowmg the Issumg of that decIsIon, the partIes
requested that a hearIng date be set for a hearIng on the second Issue. ThIS was done, and at the
heanng Counsel agreed that they would re'ty on the eVIdence from the preVIOUS gnevance and
would present argument only
In argumg thIS Issue, the Board's authorIty under the Crown Employees' Collective
Bargaining Act arose It reads as follows
s. 18(1) Every collective agreement shall be deemed to provide that it is the exclusive
function of the employer to manage, which function, without limiting the
generality of the foregoing, includes the right to determine,
(a) employment, appointment, complement, organization,
assignment, discipline, dismissal, suspension, work methods
and procedures, kinds and locations of equipment and
classification of positions, and
In additIon to any other rights of grievance under a collective agreement, an
employee claiming,
(c) that he has been disciplined or suspended from his
employment without just cause,
May process such matter In accordance wIth the grievance procedure provided
in the collectIve agreement, and failmg final determination under such
procedure the matter may be processed in accordance with the procedure for
final determination applicable under section 19
The eVIdence whIch IS germane to thIS gnevance IS the following. Ms Baldeo's last day
of work was March 30 1990 She had been told to return to work on January 6 1992, by
Gordon Lang, the Manager, East of Bay Street PropertIes, who had supervlso,ry responsIbIlIty
over the GrIevor's posItIon, Mr Lang testIfied that she dId return and that he had no further
dIrect contact wIth her On May 6 1991, a letter was sent to her from the Mlmstry of
Government SerVIces, Human Resources Services Branch, followmg the demal of L TIP by the
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Insurer, askIng that she contact the Human Resources Consultant WithIn two weeks "to discuss
[her] return to work or [her] Intent to appeal the deCISion ofthe Insurance carner" Ms. Baldeo
adVised the Employer, accordIng to her eVidence, that she Intended to appeal Between her last
date of work and the notificatiOn that she was released from her employment, based on a
determInatiOn that she had abandoned her pOSitiOn on May 18, 1993, numerous medIcal reports
were produced and submItted to the Insurer which resulted In benefits beIng declIned to the
Gnevor on SIX occaSiOns, the last beIng December 9, 1992 At that time, Ms. Baldeo still held
the pOSitiOn of "regular, evemng, part-time employee In the Jamtonal Department" She was a
light-duty cleaner FollOWIng the SIxth declIne of benefits the Human Resources consultant at
Management Board Secretanat, sent a letter to Ms. Baldeo on February 5, 1993, askIng her to
take a letter to her phYSICIan for reply and to send an up-to-date resume In response, Ms.
Baldeo S,physIcIan wrote to the Property Management DIVISiOn on March 15, 1993, as follows.
Re' Leela Baldeo
Reference is made to your letter dated February 5 1993 The contents therein have been
noted and I wish to respond as follows,
I Having reviewed the job specifications, I am enclosing copies of the job description
which specific items deleted from the list. In my opmion, Mrs. Baldeo should avoid exposure in
these specific situations as they may aggravate her asthma.
2. The use of masks and gloves may only partially protect Mrs. Baldeo in as far as
exacerbations of her asthmatic condition is concerned,
., On referring to the job specification, there are obviously a variety of functions that she
" can continue to perform, as well as work of a clerical nature if such is available
4 It may benefit Mrs. Baldeo to engage in a fitness and weight loss program and she ought
to be encouraged in this regard,
I trust that this additional mformation wIll be of some value in accommodating the
above-named employee
Sincerely yours,
"Signed"
V Moodley M.D
VM/av Ene!.
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The Employer reviewed the modifications mdlcated by Dr Moodley and concluded that It was
wllhng and able t9 accommodate the Gnevor with the modIfied duties which her physIcian had
mdlcated would meet her medical reqUirements
A number of letters was sent to Ms. Baldeo from Management Board Secretanat,
Property Management DIvIsIOn, dunng the penod leadmg up to the declaratIOn of abandonment
and these are reproduced below On Fnday, Apn116, 1993, Ms. Konttmen sent the followmg
letter to Ms. Baldeo concernmg her return to work.
April 16 1993
Dear Ms. Baldeo
We have received information from your medical practitioner, Dr Vasse T Moodley that you are
able to perfonn the essential duties of your job with minor modifications.
Therefore, I would ask that you report to work on Tuesday April 20, 1993 at 4.30 p.m Please
report to Zoe Doukas, in the upper basement of25 Grosvenor Street.
Should you have any questions please contact the writer at 314-3475 We look forward to your
return to work.
Yours truly
"Signed"
Marja-Liisa Konttinen
Property Manager
[ThiS correspondence was sent regIstered mall and Its receipt was confirmed.]
April 16 1993
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Dear Ms. Baldeo
Please forward the attached letter to your doctor
Yours truly
Marja-Liisa Konttinen
Property Manager
The attached letter read as follows
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April 16 1993
CONFIDENTIAL
Dear Dr Moodley'
RE, Leela Baldeo
Mrs, Baldeo has been asked to forward this letter to you in order to clarify some issues raised by
your letter dated March 15 1993
In the job description you deleted the use of cleaning solutions, deodorizers and disinfectants.
Would Ms. Baldeo be able to use the following cleaning solutions?'
I Vinegar diluted with water
2. "Ajax"
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Thank you in advance for your cooperation.
Yours truly,
Marja-Liisa Konttinen
Property Manager
(It was also confirmed that these letters were receIved by Ms. Baldeo ]
Ms. Baldeo faIled to report to the workplace on Tuesday, Apnl 20, 1993, nor dId she
telephone the Employer as suggested. On Monday, Apnl 26, 1993, Ms. Baldeo contacted Ms
Konttmen and mformed her that the notlce of return to the workplace was too short. In
testlmony, she stated that she was away "on Fnday [23rd], and came back on the 24th
[Saturday]" and thought she telephoned Ms. Konttmen on that day saymg that she had recelVed
the letter on the same day She thought she telephoned another day and must have told Ms.
Konttmen that she was not commg and that she dId not want to come mto that enVIronment. She
recalled tellmg her on Monday, Apnl 26th, that the notIce to return was too short. Ms Konttmen
teStlfied that Ms. Ba1deo asked to return on her ShIft on May 3, 1993 (Monday) to WhICh she
agreed, at the same tIme askmg her to telephone If she had further concerns and warmng her that
If she dId not present herself at the workplace on that date, the Employer would have no other
optIOn but to dIsmISS her It was Ms, Konttmen's recollectIOn that she responded, "fine" On the
day after that telephone conversatIon, the Employer wrote the followmg letter
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April 27th, 1993
Dear Ms. Baldeo
This will confirm our discussion of today and. further to my letter to you dated Api'll 16th, 1993
when we spoke of your return to the workplace
As we discussed, the information we received from your medical practitioner Dr Vasse T
Moodley, indicates that you are able to perform the essential duties of your job with minor
modifications.
You did not report to the workplace, or call me as requested prior to April 20th, 1993 On April
26th, 1993 you contacted me and stated that the 110tice of return to work was too short.
I advised that you are expected to return to the workplace on May 3rd, 1993 at 4.30, p,m for your
shift.
Pleased be advised that failure to report to work on May 3rd, 1993 will leave us no alternative but
to consider that you are abandoning your position.
Should you have any questions, please contact me at 314-3472. We look forward to your return
to work.
Yours Truly
"Signed"
Marja-Liisa Konttinen
Property Manager
The eVIdence shows that there was a telephone conversatIOn between Ms. Baldeo and Ms.
Konttmen on Thursday, Apn129; 1993, dunng whIch Ms Baldeo requested a copy of the
modIfied Job specIficatIOn. ThIS was sent to her by Ms Konttmen accompamed by the followmg
letter
April 29th, 1993
Dear Ms, Baldeo
Please find attached the modified job specificatIOn for your information as requested by you
toda} As further discussed, the night cleanmg supervisor will assist you WIth your modified job
on May 3 1993 at 4,30 p,m
Yours Truly,
Marja-Liisa Konttinen
Property Manager (A)
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Ms Baldeo did not telephone or attend at work on May 3, 1993 There was no word from her as
of May 17 1993 and the followmg day the Employer sent the followmg letter'
May 18, 1993
Dear Ms, Baldeo
On April 27 1993 you received a letter from your manager MarJa-Lilsa Konttinen, advising you
that, In accordance with information received from your medical practitioner you were expected
to return to the workplace on May 3 1993 at 4 30 p.m The letter further advIsed that failure to
report to work by May 3, ] 993 would leave us no alternative but to consider that you have
abandoned your position.
As of May 17 1993 you have not reported to work, Therefore, effective immediately you are
hereby released from employment pursuant to Section 20 of the PubliC Service Act:
A public servant who is absent from duty without official leave for a period of
two weeks or such longer period as is prescribed in the regulations may by an
instrument in writing be declared by his deputy minister to have abandoned his
position, and thereupon his position becomes vacant and he ceases to be a public
servant"
All documents pertaining to your termination wiJI be forwarded to you,
A copy of this letter will be placed on your personnel file.
Yours truly
"Signed"
Julie Leggatt
Executive Director
On August 4, 1993 Ms Baldeo wrote the followmg note to Ms. Konttmen
Dear Marja-Liisa,
Enclosed is my resume, and the letter from my doctor you reqUired.
Sincerely
Leela Baldeo
Both items mentioned were attached, and Dr Moodley had, on the letter gIven to him by Ms.
Baldeo, approved the first item and rejected the second. The date of hIS domg so was not noted,
nor was there a date on the resume
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The Employer referred the Panel to the followmg cases, while the Umon chose to
comment on these cases, rather than to submit others It IS helpful the Board believes, to outlme
the circumstances of these cases and the respective Board s response to them.
OPSEU (Tam) and The Crown in Right of Ontario (Ministry of Revenue) (1976)
GSB 1/76 (Beatty)
The Gnevor m thiS case applied for four week's vacatIOn leave and four weeks' leave
WIthout pay to travel to Hong Kong to deal With her late mother-m-law's estate The Employer
dented the four weeks' leave Without pay given that It fell dunng a peak penod, but a
compromIse was reached that the Gnevor would have her vacatIOn penod plus an additIOnal two
weeks. The Employer assured Itself that she understood the terms of the leave and the date of
antICipated return, although a diSCUSSIOn was held and It was agreed that the Grievor's husband
would telephone the Employer m the event that somethmg occurred and she was unable to meet
that return date As the matter evolved, the Gnevor's husband's presence was reqUired to deal
With the legal matters, and her's became redundant. Dunng het stay she also began recelvmg
medicatIOn from a Chmese herbalist and treatment for an ankle mJury sustamed followmg her
arnval The Gnevor's husband did telephone about two-weeks before the return date to state that
hiS Wife would not be able to return as planned and then he left for Hong Kong. There was no
further contact With the Employer untIl twenty-two days after that date when the Gnevor
attended at work.
In Its deCISIOn, the Board stated that
no where in that Act or in the Regulation is the phrase official leave defined. In the absence
of such a definition one must presume that the phrase official leave refers to leave for which the
requisite authorization actuallv was, would have been, or should have been granted, That leave
which was properly authorized would properly be characterized as official leave is manifest.
Similarly there could be no dispute that an employee who suffered some unexpected injUry or
illness could properly be said to be absent on official leave" even and although of necessity such
'Ieave could not have been authorized until after his or her absence had occurred. Equally we
believe one would be obliged to hold that an employee was on official leave, even and although
the employer may have refused to authorize his or her absence, if it could be established that the
employee did in fact have reasonable and justifiable reasons for his or her absence, Put somewhat
differently it would not suffice for an employer who claimed that an employee had abandoned
their position to argue that a leave was or would have been denied. Rather and to the contrary to
sustain the finding that an employee was absent 'without official leave it would be incumbent
upon the employer to establish such leave was not unreasonably discriminatorily or arbitrarily
withheld.
The Board found that she was dented leave and that she had no legitimate or valid excuse for
remammg m Hong Kong past the date she was due to return to work. and that her absence
beyond that date was both unreasonable and unJustified, although understandable It detemuned
that
In the circumstances the conclusion must follow that Mrs, Tam was indeed absent without official
leave from December I until December 22, 1975 Havmg satisfied the only condition stipulated
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in s, 20 it must also follow that the employer was entitled to mvoke the provisions of that section
and declare that Mrs, Tam had abandoned her position In the face of such a findmg it necessarily
follows that it can not be said that Mrs, Tam was unjustly dismissed and this grievance must
necessarIly be denied, Once having determined that the conditions on which the deputy mmister s
declaration must be premised have been satisfied, the Board has no jurisdiction to interfere with
that decision. Havmg satisfied ourselves that Mrs. Tam was not improperly dismissed, this
Board's function ceases, We simply possess no power or authority to review or interfere with the
merits of a decision which has validly been taken under s. 20 of the Act. In the result Mrs. Tam s
grievance must be denied.
OPSEU (Roy) and The Crown in Right o/Ontario (Ministry 0/ Education) (1978)
GSB 6/78, (Brunner)
The Gnevor In thIS case was a Clerk Supply In the Mimstry of EducatIOn. On the same
day that he received notIce that he was to be reassIgned, he left the workplace and dId not return.
He filed a grievance allegIng unjust dIsmIssal and that the reassIgnment was prompted by
"dIscnmInation and bad faIth" The Employer wrote to hIm adVISIng that he was absent WIthout
authonzatIOn and that he should return to the workplace WIthIn a fourteen-day penod follOWIng
hIS ImtIal day of absence and warmng, hIm that hIS contInued absence would result In hIS release
from employment. The Uillon argued that the reaSSIgnment was Improper and that a heanng
should have been held respectIng the release from employment under SectIon 20 of The Public
Service Act. The Board rejected both these arguments. It found that the Gnevor at no tIme
sought a leave of absence, and that he should have accepted the deCISIon of the Employer WIth
respect to reaSSIgnment and then have gneved the reaSSIgnment. In the result, the Board found
that
the grievance fails on the ground that we have no jurisdiction, statutory or otherwise, to entertam
it. It fails on the additional ground that it has not been shown that the grievor was dismissed from
his employment as alleged by the grievance. Indeed, as stated, we have found that there was no
dismissal from employment. He simply ceased to be a public servant on November 4 1977 by
reason of the declaration of the Deputy Minister under Section 20 of The Public Service Act
OPSEU (Jone) and The Crown in Right o/Ontario (Ministry o/Government Services) (1989)
GSB 1098/87, (Emnch)
The Gnevor In thIS case was Involved In an automobIle aCCIdent In CalIforma
approXImately two weeks before the end of an approved sIx-month, unpaId leave of absence she
had been granted to prOVIde temporary care for an aunt who was unwell, pendIng a permanent
arrangement. The Gnevor was Informed In the approval letter, that no extenSIOn would be
granted. She requested an extenSIOn of the leave to finalIze her medIcal reports for the case
resultIng from the aCCIdent, the extenSIOn was demed and she was clearly put on notIce that
faIlure to report to work WIthIn fourteen days after the end of her approved leave penod would
result In a recommendatIOn that her pOSItIOn be declared abandoned. She faIled to do so and she
was released from her employment on the grounds that she had abandoned her pOSItIon. ThIS
Gnevor submItted a medIcal report whIch stated that her condItIOn reqUIred chIropractic
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treatment for a three-month penod and that she would need to remam m CalIfornia for that length
of time
The Board found also that the Gnevor could have receIved comparable medIcal ~
treatment m Toronto where her Job was located and that, while the resolution of the case could
take a consIderable length of tIme, there was no eVIdence that the Grievor was reqUIred to remam
the CalIfornIa JunsdIctlOn. It also concluded that the facts dId not support "a conclUSIOn that the
declaratIon of abandonment was made wIthout good faith or m an arbItrary fashIOn" and
determmed that
it [was] not necessary for the Board to decide categorically whether the Board has jurisdiction to
conduct such a review since the facts would not support the grievance. even if jurisdiction is
assumed,
OPSEU (Szabo) and TIle Crown in Right of Ontario (Ministry of the Attorney General) (1991)
GSB 0292/91, (Saltman)
In thIs case, the Gnevor, a legal secretary to two lawyers, who was mvolved m work on a
partIcularly senSItIve programme, planned to take her 1991 three-weeks vacatIOn plus three-
weeks addItIOnal time (compensatory tIme and a short leave of absence) to attend a famIly
weddmg m Uruguay, at the end of January 1991 Havmg mentIOned her mtentIOn m the summer
of 1990, although WIthout details, she belIeved that she had the approval of both the mdIvIduals
for whom she prOVIded secretarIal servIces. She then booked her aIrlme tIcket. At
approxImately the same tIme one of the lawyers changed and the pOSItIOn of office manager was
created. She dId not mentIon her plans to eIther of these mdIvIduals, other than very casually
and, once agam, WIthout speCIfic details It was only m December 1990 that those to whom she
was responsIble became aware that she was mtendmg to be away for SIX weeks, begmnmg at the
end of January 1991, and at thIS pomt the speCIfics were dIscussed and she submItted a requested
memorandum to the Office Manager to, as she saw It, "apprIse everyone of the dates she
intended to be away" Management came to the conclUSIOn that she could not be spared for thIS
length of time, partIcularly at that pomt m the programme, and her leave was denIed and she was
informed of thIS both verbally and m wrItmg She was also mformed that failure to attend at
work could result m her term mati on, although she testIfied that she dId not belIeve that thIS
would really happen. An Important factor for the GrIevor was that she had paId for her aIrlme
tIcket, some $1400 00 The GrIevor dId not accept a subsequent offer of the Employer to go for
one to two weeks On January 24th, the GrIevor removed her personal effects from the desk and
left on vacatIOn. She dId not report for work the followmg day and due to a number of details,
the Employer assumed that she dId not mtend to return to that pOSItIOn Followmg a number of
attempts to contact her at home by telephone, on February 13, 1991 a letter was sent to the
Gnevor, at her home, advlSlng her to contact the Employer concernIng her "unauthOrIzed
absence" by February 15, 1991, or she would be conSIdered to have abandoned her employment.
No word was receIved, and she then receIved notIce of her release from her employment on the
grounds that she had abandoned her pOSItIOn.
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The Employer a~gued the Board had no JunsdIctIOn, gIven that the employee was
declared to have abandoned her pOSItion, the Umon argued that thIS was not a proper case for
abandonment gIven that the Gnevor mtended to return to work followmg her vacatIOn and,the
Employer was aware of thIS. The Board commented that "an employee may be declared to have
abandoned hIS or her pOSItion regardless of the employee's actual mtentIOn" and went on to find
smce "the Gnevor was absent from duty WIthout o ffic tal leave" for a penod m excess of the
mInImUm penod for the applIcatIOn of SectIOn 20 of The Public Service Act, the Employer was
entItled to declare she had abandoned her pOSItIon and that
Once a declaration has been made, the Board has no jurisdiction to deal with the matter unless the
abandonment is, in reality, a dismissal for cause: Tam 1/76 Roy 6/78 Jone 1098/87
Angela Rae, Counsel for Employer, acknowledged that had the Panel found that Ms.
Baldeo should have been granted L TIP, that she would have been hard pressed to argue
abandonment, gIVen that It could have been argued that offiCIal leave could, m that SItuatIon, be
saId to have been granted. The OppOSIte should hold true, she submItted, that IS, If L TIP were not
granted, officIal leave should be deemed not to have been granted, Ms. Baldeo should have
returned to the workplace In her reVIew of the cases, she made the pomt that whIle certam of the
earlIer cases, dId go mto the questIOn of whether or not the employer acted reasonably, this IS no
longer relevant, gIven that the Board III the most recent case, Szabo, only conSIdered whether or
not the prereqmsltes of SectIon 20 of The Public Service Act had been met. The Panel is, she
submItted, charged WIth ensunng that the legIslatIOn IS observed.
Ms. Rae submItted that there are four elements whIch must be satIsfied m order for a
declaratIOn of abandonment to be proper They are
1 The employee must be a publ1c servant.
2 The declaratIOn must be made by the Deputy MmIster or hIs/her deSIgnee
3 The declaratIOn of abandonment must be m an mstrument of wntmg
4 The publIc servant must be absent from duty WIthout officIal leave two weeks.
(Nothmg longer has been speCIfied m the RegulatIOns)
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Ms Rae submItted that It IS agreed that the first two condItions have been met, that eVIdence has
been submItted of the mstrument ofwntmg" and that the time between May 3, J993 and May
18, 1993, IS m excess of two weeks, but made the pomt that the Gnevor had not been at work for
a penod m excess of three years at the time she was sent the letter mformmg her of her release
from employment. She concluded that the Employer has satIsfied all the prereqUIsItes for
abandonment and that the Board has no JunsdictIon.
Peter LukasIeWICZ, Counsel for the Umon, submItted that the Board should focus on the
penod subsequent to Apnl 16, 1993, as the only relevant tIme penod. He stated that the extent
of Ms. Kont~men S recall was Ms. Baldeo' S comment that the notIce to return was too short, and
that one can make the assumptIOn that thIS refers to the receIpt of the notIce only after the date
Ms. Baldeo was told to return to work. Ms. Baldeo gave eVIdence that she dId not want to return
to an unsafe enVIronment. There IS, he stated, no record or recall of the conversatIOns between
the Employer and the Employee He drew the Board's attentIon to Ms. Baldeo's eVIdence that
she dId not want to return to work because she was very scared, and was not willing to take any
chances, partIcularly m the light of Dr Chamber s 1989 comments and her preVIOUS short-lIved
expenence of trymg to return to work when the aSSIgned aSSIstant dId not work WIth her
It IS clear, he mamtamed, that when one VIews the SItuatIOn m ItS totality, It was reasonable for
Ms. Baldeo not to report for work gIven that she had the honestly held belIeve that she was not m
a pOSItIOn to do thIS work WIthout It affectmg her health. There IS no suggestIOn of any other
reason.
Mr LukaSIeWICZ VIewed the Junsprudence dIfferently from Ms Rae He argued that
Szabo and Tam do not arrive at a correct deCISIOn. He went on to explam that III hIS opmIOn,
three thmgs happen mSIde SectIOn 20 of The Public Service Act.
1 There IS a declaratIOn made by the Deputy Mimster that an mdIVldual has
abandoned hIS or her PO'sItlon.
2 The pOSItIOn becomes vacant.
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3 The pubhc servant cease to be a pubhc servant.
The analysIs 111 Tam falls to focus on the thIrd element, he submitted, that IS, the ceas1l1g to be a
pubhc servant, and the fact that when an employee ceases to be a pubhc servant, he or she IS
dismissed from employment. Because an employee IS declared to have abandoned his or her
pOSitIOn does not, he submitted, mean that the 1I1dlvIdualls no longer employed by the Ontano
PublIc Service Accord1l1g to Mr LukaSieWIcz the Employer IS saY1l1g, not only IS It declar1l1g
the posItion abandoned, but that It IS not prepared to asslgn'that 1I1dlVIdual to another pOSitIOn
and IS term1l1atmg that person's employment, and his or her status as a prov1l1clal publIc
servClpt. ThiS IS, he submitted noth1l1g more than an ordmary termmatIOn of employment and the
Panel has the nght to review termmatIOn of employment under the Crown Employees' Collective
Bargaining Act If the Employer relIes only on the abandonment of the pOSItIOn, Ms Baldeo
would stIll be employed by the OntarIO PublIc ServIce However, he argued, the Employer relIes
on more than abandonment. It relIes also on the "release" of Ms Baldeo from her employment,
and It IS the release, not the abandonment of the pOSitIOn which IS the Issue SectIOn 20 IS Simply
another baSIS on which the Employer seeks to term1l1ate someone's employment. It IS, as
Professor Beatty says m Tam, a short way of domg an absenteeIsm case, that is, when someone
IS away for two weeks, then the Employersays that the person has abandoned hiS or her pOSitIOn.
Accordmg to Mr LukasieWICZ, there IS a problem WIth Professor Beatty's analysIs of
SectIOn 20 111 which he dlstmguishes the publIc from the pnvate sector, where mtentIOn IS the
Issue Mr LukaSieWIcz observes that he does not go beyond the objective test of "officIal leave",
and hIS consequent findmg of abandonment, to deal WIth the Issue of termmatIOn. The Board
has been gIVen the jUnSdIctlon to deal WIth dIsmissal and WIth the Issue of whether or not there
,
was just cause to do that 111 Section 18 of Tlte Crown Employees' Collective Bargaining Act
The SituatIOn of Ms. Baldeo fits wlth1l1 that. If the Board accepts that we do have jUnSdlctlon,
even though we find that there was a proper declaratIOn of abandonment, then, Mr LukaSieWIcz
submitted, there are two Issues
13
1 If there was a proper declaratIOIl of abandonment, should the MUllstry.have
termmated Ms Baldeo s-employment; and
2 Whether there was an appropnate declaratIon of abandonment, that IS, was Ms
Baldeo absent wIthout officralleave and was the MInIstry; s conduct reasonable
m the CIrcumstances
He noted that Professor Beatty dealt wIth whether or not It was reasonable for the MInIstry to
deny an employee officlalleavy In Tam, and submItted that whIle the Employer can say that an
employee IS not on officlalleave, the Gnevor can argue that she should have been placed on
offiCIal leave In our determInatIOn of whether or not It was appropnate for the Employer to have
termInated Ms. Baldeo we should consIder the follOWIng cntena:
1 Was there a reasonable explanatIon put forward by Ms Baldeo for her absence
that IS, dId she have a reasonable belIef as to why she should be absent and was
thIS belIef reasonably and honestly held?
2 Was the Employer aware of the reason?
3 Was Ms. Baldeo's reason for absence reasonable In the cIrcumstances?
He maIntaIned that these three cntena were met In thIS case Ms Baldeo had real concerns about
her health In the event that she was reqUIred to return to work, and these, In part, stemmed from a
copy of Dr Chamber's medIcal report [December 1991] WhICh she had receIved whIch revlSlted
the pOSSIbIlity of asthmatIC attacks bemg hfe-threatenmg This behef was In the context of some
twenty medIcal reports whIch noted that her asthmatIC condItIOn vaned from mIld to moderate
and the numerous conSIderatIOns of the Insurer Further, there was the 1993 report of Dr Jan
Roos WhICh adVIsed that she should only work 111 an enVIronment where she could be guaranteed
an aVOIdance of heavy dust exposure There IS no eVIdence he stated, that suggests that her
belIef was other than reasonably and honestly held, or that she was away for an} other reason.
I
It was not reasonable Mr LukaSIeWICZ argued, for the Employer to termInate Ms. I
Baldeo s employment. The reasonable course would have been to awaIt the outcome of the L TIP I
I
gnevance whIch had been filed on January 11, 1993 He questIOns why, when the Employer had
been content that Ms Baldeo remaIn absent from work WIthout "officIal leave" from March 30, I
14
1990 to AprIl 1993, It did not aWait the outcome of the L TIP grIevance At that pomt, the Issue
still eXisted between the parties, that IS, Ms. Baldeo' s belief that she was not able to perform the
essentIal duties of the positIOn and, the Employee s View, that, with modificatIOns, she was able
to do so While there IS no letter m eVIdence saymg that the GrIevor IS free to be absent from
work, the Employer nonetheless condoned her absence pnor to Apn11993, pendmg a resolutIOn
of the matter by the Insurer
With the release of the Board's decIsIon on LTIP Ms Baldeo has mdIcated her
wlllmgness to come back to work, and that IS as It should be and what should have occurred In
the begInmng, Mr LukasIewIcz submitted. It was unreasonable for the MinIstry to not have
granted officralleave and there was no cause to terminate her employment In these
circumstances. She was, he submItted, an employee at the tIme and had been part of the Ontano
PublIc ServIce for some thIrteen years Her record was unblemIshed and there was no suggestIOn
that her absence was for other than health reasons.
Counsel for the Umon summanzed the Umon's posItiOn as follows
1 The Employer ought to have granted the Gnevor official leave and It was
unreasonable for It not to have done so gIven that the three pnor years, dunng
whIch she was absent were, In effect, officIal leave,
2 The explanatIOn of her honest belief that her health would be Impenlled If she
returned to work,
3 The Employer knew the reason she was not returning to work,
4 It was reasonable m the CIrcumstances for Ms. Baldeo to take the VIew she dId,
even though the Board concluded that It was not one whIch was supportable on
the facts and the medIcal opinIOns
If we find that the Employer was not oblIged to grant offiCial leave, there IS no reason to deal
wIth matter through terminatIOn and It could have granted Ms. Baldeo an absence without pay, or
used some form of diSCipline, If It felt that It was compelled to admInIster diSCipline The UnIon
IS seeking an order dIrecting the Gnevor s return to work ImmedIately as a cleaner wIth modified
15
Job dutIes as proposed by the Employer Mr LukasIewIecz proposed that she be compensated
from May 17, 1993 (the date of her release) or alternatively the date of the deCISIon March 13,
1995, the date after WhICh she was prepared shortly to return to work.
In reply, Ms Rae asked us to reVIew the eVIdence of Ms Konttmen concermng her
contact WIth Ms. Baldeo She also made the pomt that nothmg turns on the pOSSIbIlIty that the
'--
Gnevor mIght not have receIved the letter of Apnl 16, 1993 untIl after the return-to work date as
she was giVen a second date of return.
She submItted that the tests and questIOns WhICh Counsel for the Umon proposes are at
odds WIth nmeteen years of Grievance Settlement Board case law on what the Board should do m
such cases and remmded the Panel of the Blake deCISIon whIch states that the Board must satIsfy
Itself before overturnmg the eXIstmg case law She noted the value that the Gnevance Settlement
Board places of conSIstency and predIctabIlIty and the Union has not presented the Panel WIth
any salIent reasons for It to do so He also submIts that the Panel should Ignore the fact that
SectIOn 18 of The Crown Employees Collective Bargaining Act speaks to dIsmIssal, suspensIOn
and dIscIplme It does not, she mamtamed, say that the Board has the authonty to reVIew
abandonment.
Ms. Rae commented that Mr LukaSIeWICZ focussed hIS submISSIOn on reasonableness -
that of the Employer's actIOn and the Employee's belIef. ThIS IS a red hernng, she submItted,
and we ought not to be lookmg at It. She commented on what she VIewed as the Gnevor s
frequent lack of reasonableness throughout the penod m questI<2nand argued that If the partIes
are gomg to argue the Issue of reasonableness, the Gnevor would be on the losmg end. The
Employer allowed the SItuatIOn to contmue dunng the tIme the Gnevor was appealmg to the
Insurer, sought medIcal eVIdence to modIfy her dutIes and gave her tIme to return to work, - all
reasonable responses m Ms Rae s opmIOn. She submItted further that nothmg would have been
gamed by anyone She acknowledges that the Employer took a chance on the outcome of the
L TIP gnevance but, had It not done so It would be back where It was on the day of the heanng
16
While one may have sympathy for the Gnevor, the Panel must let the law operate as It should
and dIsmISS the gnevance, she mamtamed.
DECISION
The eVIdence above shows that Ms. Baldeo filed her L TIP grIevance (January 11, 1993),
followmg the SIxth declIne of benefits by the Insurer based on ItS assessment that she was not
totally dIsabled wlthm the meamng of ArtIcle 42.2 4 of the CollectIve Agreement. It was at that
pomt, that the Employer determmed It should proceed to accommodate her m her pOSItIon and
set about workmg out the detaIls of thIS accommodatIOn and of her return to work as a hght-
dutIes, regular, part-tIme, evemng cleaner at 25 Grosvenor Street. It began, by speakmg WIth
Ms. Baldeo by telephone and followmg thIS, sent her a letter on February 5, 1993, askmg her to
take a letter to her phYSICIan requestmg hIm to modify the Job specificatIOn for her pOSItIOn and
to respond to certam questIOns so that Ms Baldeo could be appropnately accommodated. There
IS no eVIdence as1to when Ms. Baldeo receIved the letter, or when It was delIvered to her
phYSICIan, but he replIed on March 15, 1993, and hIS reply was receIved on March 19, 1993,
approXImately SIX weeks later In hIS correspondence WIth the Employer, he revIsed the Job
speCIficatIOn to meet Ms. Baldeo's medIcal needs and responded to the other questIons notmg
that whIle there were certam restnctIOns, there was "ObVIOusly a vanety of functIOns that she
.[ could] contmue to perform" A regIstered letter dated Fnday, Apnl 16, 1993 sent to Ms.
Baldeo notIfied her to report to work on Tuesday Apnl 20, 1993, at 4 30 pm, toa speCIfic place
and person and mVIted a telephone call If there were questIOns. It also mcluded a bnef letter
requestmg Ms. Baldeo to take a letter to her phYSICIan for clarIficatIOn on the acceptabIlIty of
two cleanmg solutIOns There was no eVIdence of the date of theIr arrIval at Ms Baldeo' s home
or m her hands. Ms, Baldeo neIther telephoned nor attended, nor dId she at that tIme arrange for
the mformatIOn to come to the Employer from her phYSICIan. On Monday, Apnl26 1993, SIX
days after the date of her notIficatIon to return was sent, she telephoned Ms Konttmen and told
her that the notIce was too short and conveyed to her that she WIshed to return on Monday, May
3, 1993 (The Board IS In agreement WIth Ms Baldeo that the sendmg out on a Fnday of a notIce
17
to return to work on a Tuesd'lY evenmg, given the vaganes of the maIl system and the fact that
part of that tIme mcludes a weekend, without telephonIng to see If the Employee was there to
receive the notice, IS not adequate notice) On Tuesday Apnl 27, 1993, Ms Konttmen spoke
wIth Ms. Baldeo and sent a letter confirmmg theIr conversatIon m which she had conveyed to
Ms. Baldeo that her physIcIan had mdlcated she was able to perform the essentIal dutIes of her
Job and she would be expected to report to work on Monday, May 3 1993, at 4 30 p.m. She also
warned her that fmlure to do so would result m the Employer consldenng that she was
abandomng her pOSItIOn. ThIS letter also mVlted her to telephone If she had any questIOns and
Ms. Baldeo took up thIS InVItatIOn on Apnl 29, 1993, and requested a copy of the modified
dutIes. These were sent to her the same day, along WIth a remInder of her antICIpated return to
work on May 3, 1993 at 430 p.m. There was no eVIdence of the date of the receIpt of thIS letter
by Ms. Baldeo Ms. Baldeo dId not report to work as Instructed, nor dId she telephone She had
made no contact WIth her Employer as of May f7, 1993 and on May 18, 1993, she was sent a
letter, by couner, notIfYIng her that she was beIng released her from her employment as she was
deemed to have abandoned her pOSItIOn, pursuant to SectIOn 20 of The Public Service Act
SometIme after August, 4 1993 Ms KonttInen receIved a note from Ms. Baldeo enclOSIng her
resume whIch had been requested on Febrllary 5, 1993 and the phYSICIan's InfOrmatIOn whIch
had been requested on Apnl 16, 1993
FollOWIng Ms. Baldeo's faIlure to respond to ItS efforts to modIfy her pOSItIOn and
accommodate her In her return to work, the Employer chose to declare that sh,e was released from
employment on the grounds that she had abandoned her pOSItIOn. There IS nothIng to restnct It
from dOIng so prOVIded the prereqUISites are met, and once It takes that course, ItS actIOns are
tested agaInst the speCific legIslatIOn as to whether or not it has met the cntena set out thereIn.
The legIslatIOn, to CIte It agaIn, reads as follows
20. A public servant who is absent from duty without official leave for a period
of two weeks or such longer period as is prescribed in the regulations may by an
instrument in writing be declared by his deputy minister to have abandoned his
positIOn, and thereupon his position becomes vacant and he ceases to be a public
servant.
18
~
This IS a dIscretIOnary clause whIch IS avmlable to a deputy mlmster when a publIc
servant IS "absent without official leave for a penod of two weeks" In this case the Employee
was absent from May 3, 1993 to May 17, 1993 mcluslve She had not requested officlalleave",
nor had the Employer granted It. Indeed, there was no contact between them The Employer
chose not to seek Ms. Baldeo out, and It was her responslbdlty to contact her Employer, If she
was unable to attend at work, to make the Employer aware of the reasons and request "offiCial
leave" The Employer could then deCide If It was prepared to grant that leave The Gnevance
Settlement Board ]unsprudence makes It clear that the mtentlOn of the employee IS not a factor
This has been establIshed m the cases Cited above There IS no eVIdence to suggest that the
Gnevor was unable to contact the Employer dunng the two-week penod m May 1993 The
Board does not accept the Umon's argument that Ms. Baldeo had an honestly-held belIef to the
pomt of bemg "scared" that returnmg to work to a modIfied cleaner pOSItIOn would be harmful
to her health. It was establIshed m the L TIP gnevance, that Ms. Baldeo dId not want to return to
work as a cleaner but that she wanted to be work m a clencal pOSItIOn. The Board found that
there was no medIcally substantIated reason for such a reassignment She only demonstrated her
wlllmgness to return to her cleaner pOSItIOn m late 1995, at the heanng on the
dIsmIssal/abandonment matter when It had been made clear to her that bemg reassIgned to
another pOSItIOn, such as a clencal poslt1on, was not a pOSSIbilIty
When she faIled to report for work on Apn126, 1993, and had been gIven a second
return date, she was given adequate, clear, repeated notice of this return date, and she was warned
m clear terms of the consequences of her fallure to attend at work. Ms Baldeo chose not to do so
and SImply fmled to mform her Employer or attend at the workplace when she was scheduled to
work. The Employer's chOice was to actIvate thiS sectIOn and declare Ms Baldeo had abandoned
her pOSitIOn. She was a publIc servant, she was absent from duty, ( usmg the May 3; 1993,
return-to-work date, as of May 18, 1993 the date of her release from employment, as the
Employer dId), for the reqUISIte two-week penod, and offiCial leave had not been granted to her
19
0
Mr LukaSIeWICZ submItted that It was unreasonable of the Employer not to grant officIal
leave and to issue the notIce of abandonment pnor to the outcome of the L TIP grIevance
However, there IS no reqUIrement for reasonableness m mvokmg SectIOn 20 In Tam the Board
stated that
Equally we believe one would be obliged to hold that an employee was on official leave, even and
although the employer may have refused to authorize his or her absence, if it could be established
that the employee dId in fact have reasonable and justifiable reasons for his or her absence Put
somewhat differently it would not suffice for an employer who claimed that an employee had
abandoned their position to argue that a leave was or would have been denied, Rather and to the
contrary to sustain the finding that an employee was absent 'without official leave it would be
incumbent upon the employer to establish such leave was not unreasonably discrimmatorilv or
arbitrarily withheld,
Ms. Rae submItted that the fact the Board m Szabo had not consIdered the Issue of whether or
not the Employer's declaratIOn of abandonment was taken m good faIth and WIthout
dIscnmmatIOn means that thIS Board should not consIder It even though It was m the earher
cases of Tam and Roy ThIS Board makes a dIstmctIOn between the grantmg of officIal leave
and the declaratIOn of abandonment and IS of the opmIOn that It IS wlthm Its purvIew to consIder
whether or not officIal leave was "unreasonably, dlsnmmatonly or arbItanly wIthheld", but that
It IS not wlthm its purvIew to determme If the declaratIOn of abandonment was Issued
"unreasonably, dIscnmmatonly or arbltramly once the reqUIsIte condItIOns have been met.
Havmg revIewed the eVIdence and consIdered the arguments of Counsel, It IS the deCISIOn of thIS
Board that offiCIal leave was not WIthheld "unreasonably, dlscnmmatonly or arbItranly
The questIOn IS not whether the Employer should have mvoked SectIOn 20 nor IS it
whether the Employer was reasonable m mvokmg sectIOn 20 or whether ItS deCISIOn to do so
was tImely The questIOn IS, as noted m the conclUSIOn of Szabo, whether or not the Employer
was entitled to mvoke sectIOn 20 In other words had It met the four prereqUISItes set out m the
sectIOn. The Board finds that m the case of the Gnevor, Ms Baldeo, It met the prereqUISItes and
was therefore entItled to apply SectIOn 20 of The Public Service Act The result of thIS IS that
thIS Board IS without JunsdlctIOn to consIder the matter further and the gnevance IS dIsmIssed.
20
\
~
Dated at Kmgston, Ontano ~
June 5, 1996
~.~ ~~\~ ~
D M Montrose, Member
"I Dissent" (dissen~ attached)
E E Seymour, Member
21
i
O.P.S.E U (BALDEO)
- and -
THE CROWN IN RIGHT OF ONTARIO
MBS / MGS GSB FILE 1270/93
DISSENT
Edward E Seymour, Employee Nominee
;0<,....,.. 'V'1~~'f,'!"".;.':,'~h'.:'
I have read the Majority Award and, with respect, I must dissent
Ms Baldeo had a long history of asthma, for which she attended
numerous medical examinations These examinations resulted in twenty (20)
medical reports from several medical practitioners which described her as
having a mild to moderate asthmatic condition One practitioner, Dr Hugh
R Chambers, Medical Consultant, in correspondence to Ms A Skrupskas
[Ex 13], confirmed that Ms Baldeo came to see him following an attack He
further confirmed that he and Ms Baldeo t1. . . discussed her exposure to dust
through handling old files. I expressed concern that another attack might be
more severe or even life-threatening She was to see her family physician and
an allergist.-"
Despite the numerous visits to medical practitioners, and the reports
which arose from them, all of which were forwarded to the Ministry or to
Confederation Life, Ms Baldeo was denied LTIP benefits It was not until the
sixth denial of these benefits that the Ministry of Government Services Human
Resources Consultant sent a letter to Ms Baldeo, dated February 5, 1993,
requesting that she take a letter, along with a copy of her job description, to
her physician
I
--- -----
.~
"
Page 2
Dr V Moodley, Ms Baldeo's physician, responded to that request in a letter
dated March 15, 1993 wherein he indicated that the use of gloves and a mask
would only partially protect Ms Baldeo from an EXACERBATION of her
asthmatic condition
Dr Moodley proposed a number of modifications to her job and, upon
a review of these modifications, the Ministry concluded it was willing and able
to accommodate Ms Baldeo The Ministry drafted a letter, dated April 16,
1993, requesting Ms Baldeo return to work on April 20 Another letter, also
dated April 16 [Ex 16] requested that Ms Baldeo forward yet another letter
to Dr Moodley which requested clarification of the possible impact the use of
vinegar diluted with wacer, and the use of Ajax cleanser on Ms Baldeo's
health
Prior to rece~ving an answer from Ms Baldeo's doctor I:'egarding tpis
request, and without further contact with either Ms Baldeo or the doctor
about the matter, the Ministry dismissed her effective May 18, 1993 [Ex 20]
for allegedly abandoning her position Evidence heard at the Hearing
indicated Ms Baldeo's doctor responded to the above request sometime after
August 4, 1993'
Given that the process to begin to accommodate Ms Baldeo did not
commence until the February 5 letter, and ended with her dismissal as of May
18,1993, during which time the employer requested, and received one medical
report about what work Ms Baldeo could perform, and that it was seeking
clarification on that report, Ms Baldeo' s dismissal was, in my view, premature
and unreasonable
Throughout her difficulties with the asthmatic condition, Mr Baldeo
always responded to her employer's request for information, although not
always in a timely manner
In his argument, Union Counsel asked the Panel to weigh three criteria
in reaching its decision
Page 3
"
1 Was there a reasonable explanation put forward by Ms Baldeo for
the absence? Did she have a reasonable belief regarding her
absence?
2 Was the employer aware of the reason for Ms Baldeo's absence?
3 Was Ms Baldeo's reason for being absent reasonable in the
circumstances? Did she have an honest belief that, if she
returned to work, her health was in danger?
Ms Baldeo testified she was concerned about coming to work in an
unsafe work environment, and that she was very scared and was not willing
to take chances Also uppermost in her mind were previous commitments by
Management, in which she was promised modified duties on an earlier return
to work
She testified, with some supporting evidence from Management's
testimony, that the commitment to both modified job duties and assistance from
others only lasted for a short time after her earlier return to work She was
often left on her own and she was often criticized by co-workers for not
performing all aspects of the job without receiving any appreciable support
from Management to cushion those criticisms Ms Baldeo's concerns are
reasonable when the evidence is assessed in its totality
The abundance of evidence, particularly the numerous medical reports,
indicates she co-operated with Management's requests in its efforts to address
her health concerns Those efforts were on-going, but not completed when
Ms Baldeo was deemed to have abandoned her job
The Majority rejects the Union Counsel's argument that Ms Baldeo held
an honest belief to the "point of being scared" that a return to work to a
modified cleaner position would be harmful to her health In rejecting that
argumen t, the Majority state, at page 19 of the Award, that "She only
demonstrated her willingness to return to her cleaner position in late 1995 at
"
~
I
Page 4
the Hearing on the dismissal/abandonment matter when it had been made clear
~
to her that being re-assigned to another position, such as a cl~rical position,
was not a possibility. "
I disagree While Ms Baldeo did have the hope she could return to work
in a job other than cleaning, she continued to co-operate with Management's
efforts to modify her duties Ms Baldeo, with the exception of failing to
return to work on April 20 and May 3, both of which dates were unreasonably
short notice in the circumstances, co-operated fully with her employer, and
followed its instructions diligently
The Majority of the Board also found that official leave was not withheld
unreasonably, discriminately or arbitrarily Once again I disagree In my
view the time for formal communication requesting such leave had long since
passed Ms Baldeo had been involved with doctors, receiving reports and
submitting them for some considerable time in a legitimate effort to receive
LTIP benefits When all those efforts failed, both the Ministry and Ms Baldeo
were engaged in ongoing efforts to reach an agreement on modified duties
which were acceptable to both of them These discussions commenced with the
February 5 letter, and were still going on at the time of Ms Baldeo's release
The employer, in requesting from Dr Moodley further information about the
effect that vinegar diluted with water, and Ajax cleanser would have on Ms
Baldeo was obviously still in pursuit of answers regarding Ms Baldeo's
problems It was, in my view, given Ms Baldeo's history, unreasonable for
the employer not to make at least one enquiry as to why she did not show up
for her assigned return to work on May 3rd At the very least, the employer
should have followed up on the enquiry to the doctor before declaring that Ms
Baldeo abandoned her position
It is inconceivable that the employer could possibly believe that
Ms Baldeo's failure to return to work was for any reason other than a concern
for her health
-.-.-- -
2
'~
Page 5
-
The employer set the wheels in motion in attempting to accommodate Ms
Baldeo, by attempting to determine what work she could do and what cleaning
products she could use safely I as well as trying to determine what protective
clothing she required
While the employer deserves credit for those efforts I it is, for this
Member, difficult to understand why the time lines for the return to work were
so unreasonably short The employer may indeed be within the strict bounds
of S 20 of The Public Service Act "in declaring that Ms. Baldeo abandoned her
position. " The employer, however, showed no compassion in the manner in
which it accomplished that task
I distinguish Ms Baldeo's situation from that described in 0 P S E U
(Szabo) and The Crown in Right of Ontario (Ministry of the Attorney General)
1991, GSB 0292/91 (Saltman ) Szabo's reasons for absence from her job were
not as severe as those of Ms Baldeo Szabo wanted extended vacation to
attend the wedding of her husband's cousin She refused 'to accept any
suggestion to reduce the length of her vacation in an effort to alleviate her
employer's concern There was no health risk Yet ev~n here, her employer
had the courtesy to attempt to contact Ms Szabo on three different occasions
when she did not report There was no similar effort to contact Ms Baldeo,
nor did the employer make any effort to determine the delay in receiving the
final report from the doctor in giving a response to its request about the
vinegar and Ajax cleanser
Ms Baldeo co-operated with her employer fully throughout, she saw
numerous doctors and filed numerous reports This illustrates a serious
effort on her part to co-operate with' her employer
I am in disagreement with the Majority contention that Ms Baldeo only
agreed to return to work as a cleaner following the release of this Panel's
Interim Award Any final determination as to whether she would have
returned to a cleaner's job with modified duties was short-circuited when
\
Management declared that she had abandoned her job before receiving a reply
.-::<
it
Page 6
to its latest enquiry, and, in fact, showed no apparent ihtefest in receiving
a reply
No doubt Management was exasperated in its efforts to see the matter
resolved That exasperation, however, was mild when weigned against the
possible consequences for Ms Baldeo if her medical requirements were not
fully addressed In fact, Ajax cleanser, one of the cleaning materials about
which the Ministry enquired, was rejected by Dr Moodley
I am in agreement with Union Counsel in his assessment that from
January 11, 1993, the employer knew there was still an issue with both the
Union and Ms Baldeo regarding her disability Given that the employer was
content, from March 30, 1990 to April, 1993, for Ms Baldeo to be away from
work without official leave, and that nothing changed from April 16 to April
27, 1993 when the employer wrote the letter, there was no reason to terminate
the griever before answers to its enquiries were received Ms Baldeo, a 13-
year employee, with an unblemished record, deserved better
In view of the above, I would have ruled the denial of ieave before the
communications with Ms Baldeo I s doctor were completed was unreasonable
Further, I would have ruled that Ms Baldeo be permitted to return to work
under modified conditions proposed by the Ministry in consultation with a
medical practitioner familiar with her condition This return to work would
have been without compensation, but would have included a restoration of her
full seniority rights
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Edward E Seymour, Union Nominee
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opeiu 343
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